The Levy Runs Dry: A Legal and Economic Analysis of EU Private Copying Levies

This article provides a legal and economic analysis of private copying levies in the EU, against the background of the Copyright Directive (2001/29), a number of recent rulings by the European Court of Justice and the recommendations presented by mediator Vitorino earlier this year. It concludes that notwithstanding these rulings and recommendations, there remains a lack of concordance on the relevance of contractual stipulations and digital rights management technologies (DRM) for setting levies, and the concept of harm. While Mr Vitorino and AG Sharpston (in the Opinion preceding VG Wort v. Kyocera) use different lines of reasoning to argue that levies raised on authorised copies would lead to double payment, the Court of Justice’s decision in VG Wort v. Kyocera seems to conclude that such copies should nonetheless be levied. If levies are to provide fair compensation for harm resulting from acts of private copying, economic analysis suggests one should distinguish between various kinds of private copies and take account of the extent to which the value said copies have for consumers can be priced into the purchase. Given the availability of DRM (including technical protection measures), the possibility of such indirect appropriation leads to the conclusion that the harm from most kinds of private copies is de minimis and gives no cause for levies. The user value of copies from unauthorised sources (e.g. from torrent networks or cyber lockers), on the other hand, cannot be appropriated indirectly by rightholders. It is, however, an open question in references for preliminary rulings pending at the Court of Justice whether these copies are included in the scope of the private copying exception or limitation and can thus be levied for. If they are not, as currently happens in several EU Member States, legal and economic analysis leads to the conclusion that the scope of private copying acts giving rise to harm susceptible of justifying levies is gradually diminishing.

Is the Market Eroding Moral Norms? A Micro-Analytical Validation of Some Ideas of Anomie Theory

Anomie theorists have been reporting the suppression of shared welfare orientations by the overwhelming dominance of economic values within capitalist societies since before the outset of neoliberalism debate. Obligations concerning common welfare are more and more often subordinated to the overarching aim of realizing economic success goals. This should be especially valid with for social life in contemporary market societies. This empirical investigation examines the extent to which market imperatives and values of the societal community are anchored within the normative orientations of market actors. Special attention is paid to whether the shape of these normative orientations varies with respect to the degree of market inclusion. Empirical analyses, based on the data of a standardized written survey within the German working population carried out in 2002, show that different types of normative orientation can be distinguished among market actors. These types are quite similar to the well-known types of anomic adaptation developed by Robert K. Merton in “Social Structure and Anomie” and are externally valid with respect to the prediction of different forms of economic crime. Further analyses show that the type of normative orientation actors adopt within everyday life depends on the degree of market inclusion. Confirming anomie theory, it is shown that the individual willingness to subordinate matters of common welfare to the aim of economic success—radical market activism—gets stronger the more actors are included in the market sphere. Finally, the relevance of reported findings for the explanation of violent behavior, especially with view to varieties of corporate violence, is discussed.